HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"  1:59:55 PM CHAIR CLAMAN announced that the final order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the code of military justice; relating to consent; relating to the testing of sexual assault examination kits; and providing for an effective date." [Before the committee was CSSSHB 5(STA).] 2:00:23 PM EMMA POTTER, Staff, Representative Matt Claman, Alaska State Legislature, on behalf of Representative Claman, presented a summary of changes [included in the committee packet] in the proposed committee substitute (CS) for SSHB 5, Version 32- LS0065\R, Radford, 5/2/22, ("Version R"), which read as follows [original punctuation provided]: Version R incorporates provisions found in the Model Penal Code: Sexual Assault and Related Offenses (MPC), certain provisions in Senate Bill 187 (2022) that was put forward by the Department of Law, and the Montana statute pertaining to consent.   Sections 1-3  Version R grades sexual assault in the first, second, and third degree by including a use of force element in the description of sexual assault in the first degree (sexual penetration) and excluding the use of force element from sexual assault in the second degree (sexual penetration). This approach is based on the grading used in Senate Bill 187. Including this grading allows sexual assault with the use of force to be more easily prosecuted while maintaining the use of aggravating factors. With this change reflected in Version R, sexual assault in the first degree is amended to include sexual penetration without consent by use or threat of force. Sexual assault in the second degree is amended to include sexual contact without consent by use or threat of force and sexual penetration without consent. Sexual assault in the third degree is amended to include sexual contact without consent.   Section 4 The use of the word consent in Version R is based on the updated MPC. Section 4 aligns with the most recent proposal under consideration by the American Law Institute in their work related to sexual assault offenses. An expression of lack of consent through words or conduct is expressly established in Version R as meaning there is no consent. The requirement of a use of force is removed from statute and the absence of verbal or physical resistance is established as not establishing consent. This provision encompasses what is frequently referred to as the "frozen fear victim," the victim who reacts to the experience of being sexually assaulted by freezing when experiencing a sexual assault. This response is an observed and frequent psychological response.   Section 5 Section 5 establishes consent as willingness to engage in the conduct at issue. The definition of consent is amended in Version R to use the word "willingness" rather than "freely given" because "willingness" better captures the concept that a person wants a specific act, rather than just agrees to it. Assent can be tainted or made ineffective based on a variety of factors including the use of force, use of deception, and an individual's incapacity as a result of an act of the defendant. Distributed by the Office Version R does not require the use of force to establish a lack of consent. Version R addresses rape by fraud differently than Version W. Montana and other states address "rape by fraud" by making consent ineffective if induced by force, duress, or deception. This phrasing, based on the language in Montana statute, is found in Version R.   Section 6 Section 6, which decreases the time allowed for laboratories to wait to test sexual assault examination kits, remain unchanged. Version R removes sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree, from the bill (previously found in Sections 3 and 4 of Version W). 2:03:38 PM REPRESENTATIVE SNYDER inquired about the rationale for removing "knowingly causing a person to come into contact with semen" from the definition of sexual contact. CHAIR CLAMAN provided the legislative history of the provision pertaining to the "contact with semen" without consent. He said the intent was to leave the law intact, such as it was when it was implemented by a prior legislature. REPRESENTATIVE SNYDER asked how the offense was classified under current law. 2:04:51 PM The committee took an at-ease from 2:04 p.m. to 2:06 p.m. 2:06:29 PM CHAIR CLAMAN offered to follow up with the requested information. 2:06:58 PM REPRESENTATIVE EASTMAN asked whether the definition of "deception" would be provided in the bill or elsewhere in statute. CHAIR CLAMAN clarified that the definition of "deception" would be subject to common usage. 2:07:54 PM REPRESENTATIVE SNYDER moved to adopt the proposed committee substitute (CS) for SSHB 5, Version 32-LS0065\R, Radford, 5/2/22, as the working document. 2:08:10 PM REPRESENTATIVE EASTMAN objected. A roll call vote was taken. Representatives Drummond, Snyder, Kreiss-Tomkins, Vance, and Claman voted in favor of the proposed CS for SSHB 5, Version 32-LS0065\R, Radford, 5/2/22. Representatives Eastman and Kurka voted against it. Therefore, Version R was adopted by a vote of 5-2. 2:08:55 PM CHAIR CLAMAN announced that SSHB 5 was held over.